5th Circuit Hands Another Victory to Bail Industry


Historically, there are 5 methods used to determine whether to release people from jail. These methods are: individual magistration, a reasonable bail schedule coupled with procedural protections for the poor, the use of risk assessments to take the place of magistration, simple release and preventative detention. A county may use one or more of these methods.

If your county is using individual magistration only, then you need go no further. You are in full compliance with the federal court mandates for bail practices that satisfy the constitution. 

The litigation that has been filed involved the use of bail schedules. This litigation has lead courts to try other forms of release such as risk assessments (now disfavored) or simply releasing certain classes of arrestees such as all misdemeanors on PR bonds (something similar was tried in New York with such bad results the New York Legislature repealed many of the reforms even during the pandemic). These methods have been a disaster. The courts have been told to try these other methods in anticipation of rulings from pending cases. These projections have turned out to be wrong.

On December 28, 2020, the 5th Circuit handed down its opinion in the Dallas Federal Court litigation over its bail practices. The case is entitled: Cause No. 18-11368; Daves v. Dallas County; In the United States Court of Appeals for the 5th Circuit. 

The 5th Circuit held that: (1) the district court judges had sovereign immunity as state actors and could not be sued; (2) private surety bail does not violate the substantive due process provisions; and (3) the only relief available was procedural (such as a hearing) to ensure protections for the poor.

The case is different from the O'Donnell case because both misdemeanor and district court judges were sued in Dallas.  The trial court issued the model preliminary injunction proposed by the 5th Circuit in the O'donnell case.

The District Court judges appealed the trial court's determination claiming  sovereign immunity.  The plaintiffs appealed arguing that private surety bail violated substantive due process and should be abolished by the courts.

The 5th Circuit held that the district court judges could not be sued since they were state actors and had sovereign immunity.  

Further, on the Plaintiff's counter appeal, the 5th Circuit held that private surety bail does not violate substantive due process.  The Plaintiffs argued that cash-bail "cannot be required" when an indigent arrestee cannot pay, absent a finding that there is no other alternative that would serve the State’s interest. The court of appeals rejected this argument.  

The court of appeals noted that O'donnell I held that such a right did not exist.  The plaintiffs argued that this portion of O'donnel was dicta and not binding on the court.  But the court of appeals rejected this argument and held it was binding because in O'donnell I it explained the rejection of a remedy that in the court’s view would effectively eliminate cash bail for indigents. 

Also, the court of appeals held that the proper remedy were procedural protections with a robust hearing process for people claiming poverty.  The court of appeals confirmed the procedural protections provided for in ODonnell I was the proper relief.  The court of appeals also confirmed that even though the decision in O'donne II was from a motion panel, the court of appeals affirmed the reasoning of the decision and again confirmed that the proper remedy was a hearing to give procedural protections for anyone claiming poverty and asking for a deviation from a bail scheduled amount.

This is another great victory for the Texas Criminal Justice System.

To see opinion CLICK HERE.

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